Would this be enough for an appeal?

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obsidian
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Would this be enough for an appeal?

by: obsidian on
Mon Feb 10, 2014 7:14 pm

Hi,

I had a court date today, and was convicted of 144(9). The intersection in question, there is a "No Left" sign facing the street going perpendicular to the road I was coming from, and it's kind of a funky turn/jog where one can either make a right and then a left onto the street (which is where the 'no left' comes in), or just go diagonal.

My case was twofold:

1) Due diligence, in that as I was entering the intersection, I looked around fairly substantially in order to determine whether there was a sign preventing such a turn (as I always do), and couldn't see anything (because it was 90 degrees to my right).

2) The sign is obstructed by the streetlights coming the other direction, as well as a building, until one is pretty much already in the intersection. On those grounds, I was claiming Ontario regulation 165 section 44, in that the sign was not visible 60m from the intersection. The officer even testified that it was only visible from about 6m before the intersection.

Now, there is a GREEN sign which says "Access to Fleet via strachan", which is actually pretty nonsensical, and from my understanding not a HTA sign anyway. When I requested disclosure, the officer did not provide anything about that in his notes. He mentioned it in passing when testifying, but the prosecution didn't touch on that at all. When the JP was reading her decision, she mentioned that sign as the reason to deny my argument (2). Is that allowed, when the prosecution didn't even really mention it in his case? If it was brought up at all, I would have noted that the sign doesn't make any sense, because it's actually telling you to go back the other way, and the officer even later admitted that it was a leftover sign from before they re-worked the intersection. I don't see how that should have played into the decision at all, and I couldn't defend myself at that point because the JP was already making her ruling.

Similarly, she denied my due diligence defence (despite allowing the strict liability claim) because she said I didn't look both ways when entering the intersection. However, I distinctly testified on the stand that I took care to look for signs that I might be violating. Is this a mistake in fact? And again, the prosecution did not make any mention of this in their case, the JP was just reading into it anyway. I thought the JP is supposed to make decisions on the arguments presented by the defence and the prosecution?

Thanks for the help!


(And does anyone know what a 20 minute trial would cost approximately to get the minutes typed up?)






ynotp
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by: ynotp on
Wed Feb 12, 2014 8:21 am

If the officer mentioned the sign and you didn't object to it or address it under cross examination then it becomes part of the testimony that can be considered. You should only consider an appeal if you can cite case law that supports that the JP erred in their application of the law. Mistake of fact is a grounds of appeal but you would have to review the transcript see if the JP mentions in their ruling something contradicts established evidence presented. Appeals based on something you could have brought up at trial and didn't are not usually successful.


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